Tenngasco Gas Gathering Co. v. Fischer, 1934

• Decision Date: 13 January 1983
• Docket Number: No. 1934,1934
• Citation: 653 S.W.2d 469
• Parties: TENNGASCO GAS GATHERING COMPANY, Appellant, v. Herman F. FISCHER, Appellee. cv.
• Court: Texas Court of Appeals

Page 469

653 S.W.2d 469

TENNGASCO GAS GATHERING COMPANY, Appellant, v. Herman F. FISCHER, Appellee.

No. 1934cv.

Court of Appeals of Texas,

Corpus Christi.

Jan. 13, 1983.

Rehearing Denied March 10, 1983.

William H. Keys, Victor M. Carrera, Keys, Russell & Seaman, Corpus Christi, for appellant.

M.W. Meredith, Jr., Frank E. Weathered, Meredith & Donnell, Corpus Christi, E.B. Grimes, Robstown, for appellee.

Before NYE, C.J., and UTTER and GONZALEZ, JJ.

OPINION

GONZALEZ, Justice.

This is a pipeline condemnation suit, tried to a jury, in which judgment was entered in favor of appellee, Herman F. Fischer. Appellant, Tenngasco Gas Gathering Company, plaintiff below, brought this appeal and contends that they are entitled to a summary reversal and remand because through no fault of theirs, a complete statement of facts is not available. Appellant also questions the weight and the sufficiency of the evidence to support the jury's findings. On the other hand, through cross-points, appellee contends that appellant does not have the right to take the land in question because appellant is not using the land for a public purpose. We affirm.

"INCOMPLETE" STATEMENT OF FACTS

In perfecting its appeal, appellant ran into considerable difficulty in obtaining a complete statement of facts. The court reporter suffered a nervous breakdown and did not prepare a statement of the testimony of appellant's expert witness, Mr. Richard Clower, concerning the value of the property in question, nor the rebuttal testimony of appellee's expert witnesses. The court reporter did not even make any notes of this testimony, so that there is nothing to transcribe.

This Court ordered the parties to prepare a narrative statement of Mr. Clower's testimony, each party to present its version to the other, with the trial court to resolve any discrepancies. Rule 377(e), Tex.R.Civ.P. (Vernon's Supp.1982). Attorneys for appellant did not prepare their version of the testimony but attorneys for appellee did submit a proposed narrative to the appellant's attorney who proposed modifications to which appellee agreed. However, appellant's counsel refused to agree to the modified statement. A hearing was held in the trial court at which attorney's for appellee presented the proposed narrative (and modifications) of the missing testimony, referring to notes they had taken during the examination of the witnesses. Counsel for appellant stated that they were unable to locate their notes from the trial.

The trial court certified a narrative statement of Mr. Clower's testimony as proposed by counsel for appellee. In so doing, the trial court stated that his personal recollection of the events occurring during trial had been refreshed by the testimony given at the hearing. The trial court's order certifying the narrative statement includes the findings that there were no objections, rulings thereon, or bills of exception made during said testimony, and that the rebuttal testimony of appellee's expert witnesses was cumulative of their earlier testimony, a record of which is before this Court in the question and answer statement of facts.

Appellant contends it is entitled to a summary reversal and remand for new trial because a complete statement of facts in question and answer form if not available. Under the circumstances of this case however, we disagree.

When the complaint is made that the evidence is factually or legally insufficient to support vital findings of fact, the burden upon the party challenging such findings cannot be met in the absence of a complete or an agreed statement of facts. Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex.1968). Here we have a complete statement of facts for all intents and purposes. Appellant submits that it should not be compelled to accept the narrative statement that were certified by the trial court. He cites O'Neal v. County of San Saba, 594 S.W.2d 185 (Tex.Civ.App.--Austin 1980, writ ref'd n.r.e.); Goodin v. Geller, 521 S.W.2d 158 (Tex.Civ.App.--Waco 1975, writ ref'd n.r.e.); and Waller v. O'Rear, 472 S.W.2d 789 (Tex.Civ.App.--Waco 1971, writ ref'd n.r.e.).

In Waller, a new trial was granted when the appellant could not obtain any statement of facts because the court reporter lost his notes. The court rejected appellee's argument that appellant had not exercised due diligence to secure an agreed narrative or statement from the trial judge on the grounds that the case had been withdrawn from the jury and an instructed verdict entered for the appellee. The court expressed doubts about the abilities of the parties or the trial judge to make a statement sufficient for its review, in light of the evidentiary standard of review in directed verdict cases. 472 S.W.2d at 790-91. In the Goodin case, a statement prepared by the trial judge without any input from the parties was rejected by the Court of Civil Appeals which remanded the cause because the testimony of seven key witnesses was missing from the statement of facts. There was no mention of the length of time that had passed since the trial. In O'Neal, remand was granted following the court reporter's refusal to file the statement of facts, even after mandamus was issued and a contempt citation and fine ordered. The court there doubted the effectiveness of appellee's suggestion that after a lapse of more than 27 months, the trial court should have been asked to reconstruct the missing portion of the record.

A new trial should be granted only where it appears that no other action will adequately protect the right of the appellant to review by the Court of Appeals. Wolters v. Wright, 623 S.W.2d 301, 306 (Tex.1981). In our case, the narrative certified by the trial court protects the right of appellant to review of the testimony missing from the court reporter's notes. The critical testimony in the narrative is that of appellant's own expert witness on land values. The record of the hearing on the narrative statement contains no evidence of any efforts by appellant to reconstruct the testimony or to recall their witness to verify the version proposed by appellees. The trial court and appellee complied in good faith with this court's order to attempt to resolve the conflict with a suitable narrative. This solution seems particularly appropriate in a condemnation case, such as we have here, where the missing testimony concerns the damages to the land and the jury is free to accept or reject any or all of an expert's opinion, or blend the evidence received to determine the damages due for the taking. In the light of all the above facts, we hold that the court-certified narrative is sufficient to complete the statement of facts for appellant's protection and our review. Points of error one, two and three are overruled.

We now address appellant's objections to the testimony of appellee's expert witness on land values, John H. Reagan. Essentially, appellant contends that Reagan should not have been allowed to testify to his opinion as to the value of raw acreage because it was shown that in formulating that opinion he relied on sale prices of lots in neighboring subdivided lands. This issue has already been considered twice by this court and decided against appellant. Tenngasco Gas Gathering Co. v. Fischer, 624 S.W.2d 301, 304 (Tex.App.--Corpus Christi 1981, writ ref'd n.r.e.) and Tenngasco Gas Gathering Co. v. Bates, 645 S.W.2d 496 (Tex.App.--Corpus Christi, 1982). For the reasons given in those opinions, we hold that Reagan's testimony was admissible in our case. We overrule points of error twelve through fifteen.

Through its remaining points, appellant attacks the legal and factual sufficiency of the evidence to support the jury's findings on the values of the condemned property and the remainder of the appellee's tract before and after the taking. In considering the points we follow the well established standards set forth in In Re Kings Estate, 150 Tex. 662, 244 S.W.2d 660 (1951) and Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

In answer to special issues no. 1 and 2, the jury found that the strip of appellee's land taken for the pipeline was worth $4,000.00 before the taking and was worth $1,000.00 after. In response to issues no. 5 and 6, the jury valued the remainder of appellee's property at $564,500.00 before the condemnation and $427,500.00 after.

Reagan, appellee's first and primary value witness, testified that the strip taken for easement was worth $5,300.00 before the taking and that the damage resulting from the condemnation amounted to $3,500.00. Richard Clower, the appellant's value witness appraised the easement strip at $3,474.00 before and $869.00 after the taking, resulting in a diminution of $2,605.00.

As for the remainder of the property, Reagan testified about two parcels. A 10 acre portion separated by railroad track from the easement in question and judged suitable for industrial use was appraised at $35,000.00 both before and after the taking. Reagan testified that the remaining 137 acres was best suited to residential development. He gave two estimates of the value of this portion of the acreage before the taking: $530,000.00 and $479,928.00. The only value Reagan offered for the 137 acres after the taking was $342,820.00. Clower also divided the remainder into two parcels for purposes of evaluation. He valued 33 acres at $264,084.00, and 114.12 acres at $342,360.00 for a total of $606,444.00, both before and after the taking. In Clower's opinion, the pipeline easement had no effect at all on the value of the remainder of appellee's land.

In condemnation cases, the jury may select from the testimony on the question of value and set the value at any amount between the highest and lowest expressed by the experts. Central Power & Light Co. v. Martinez, 493 S.W.2d 903, 908 (Tex.Civ.App.--Corpus Christi 1973, no writ). Thus, a jury may blend all the evidence admitted before it. Texas Electric Service Co. v. Wheeler, 550 S.W.2d 297,...